The above diversity actions brought under the Pennsylvania Wrongful Death and Survival Act, 12 P.S. § 1601 et seq.; 20 P.S. § 320.601 et seq., were consolidated for trial, limited to the question of liability, on March 20, 1961. The deaths occurred almost nine years previously on November 18, 1952. Prior actions involving this controversy had been tried in 1953 in the case of Kernan v. American Dredging Co., D.C., 141 F.Supp. 582, No. 137 of 1953 in Admiralty. The first proceeding was before Senior Judge Kirkpatrick on the issue of exoneration. D.C., 141 F.Supp. 582. That case after 1106 pages of testimony ultimately reached the Supreme Court, 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382, and after another 421 pages of testimony was concluded in proceedings before Judge Kraft,
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resulting in an award of substantial damages to plaintiff. That case, however, did not dispose of all damages to which the plaintiffs might be entitled if successful in this collateral and belated litigation. We mention at this point the long history of the issues raised here since when this trial began and throughout it, counsel for plaintiffs continuously argued (improperly, we add) that he was faced with 'surprise' and unable to ascertain various facts through discovery and investigation. As we stated to him (NT 137), it is unconscionable that after such lengthy and prolonged litigation and with almost nine years to prepare his case, that he could raise such a question. Further reference to this will appear in our disposal of the motion for a new trial.

The basic facts creating the causes of action are as follows: Early in the evening of November 18, 1952, the tug Arthur N. Herron proceeded with an unloaded scow to port from Mantua Creek up the Schuylkill River. Open-flamed kerosene lanterns were on the port forward and after corners of the scow. The tug proceeded past the Gulf Oil Company docks to a point a mile or more upstream to Atlantic Refining Company's refinery. The unloaded scow was released and the tug took on a loaded scow to return. The exposed kerosene lamps were placed in the same position for the trip back. At this time there was a flood tide at two to three miles per hour. Approximately one-half hour later, at about 10:30 p.m., at a point 200 feet north of the Penrose Ferry Bridge there was a sudden fire which enveloped the tug and the surrounding surface of the water for a distance downstream of the tug of from 100 to 150 feet and had a width of about 100 feet. Careful reading of the record and briefs of counsel substantiated the above. However, we note here, since to us it is important, neither counsel nor the record reveals to us the width of the river at the point of the fire or how far the burning actually was from the Gulf Oil docks or any other similar installations in the general area. In our later discussion of the testimony of the expert, the significance of that point should be apparent.

Bottomed on this set of facts, a clear res ipsa loquitur situation, the plaintiff proceeded to build his case.

Plaintiff then called two experts. One was W. Stoltz, a city fireman, whose testimony was of no value except that he concluded that the fire originated on the river and not on the tug. Since our decision is not based on that point, and it is entirely irrelevant to the issue, where it started has no legal significance under the facts of this case. Dr. Hinckley was next called and asked a long series of hypothetical questions, to some extent, to say the least, based on facts not in evidence. The crucial part of his testimony reads as follows:

'That taking into account the fact -- I don't know how far I will be permitted to go here in interpreting the assumptions that I was asked to make, but clearly if the tug is essentially 100 feet long and it is engulfed in flames, and there are flames this side of it, I can assume a longer path of the fire, longer than 150 feet. To give an idea of what variation there is if the volume of flame is somewhat larger, if it turns out that the fire is 250 feet long, that places the fire 3000 feet from the source of the material.

'Now I don't want to be misunderstood about one statement that I made, that it is clear to me or at least in my opinion it is incontestable that the material that was burning was light hydrocarbons. However, it is quite clear to me that the material on the river was not entirely light hydrocarbons, if I am limited by the things which I was asked to assume.

'If I were, for example, told to limit my calculations to light hydrocarbons, let's say gasoline -- if I had been told to limit my calculations to gasoline on the river and then had been given this set of data and asked to calculate where this material originated, my only answer could be that I had been given an impossible problem.

Accordingly, judgment n.o.v. will be entered in favor of the defendant.

Alternative Motion for a New Trial.

In the event that it is determined that we err in determining that the motion for a directed verdict should have been granted and now conclude that judgment n.o.v. is the correct disposition of this matter, we turn to the alternative motion for a new trial.

At the beginning of this opinion we referred to the lengthy and protracted prior litigation collateral hereto. Notwithstanding repetitive rulings on the question of 'surprise' and our granting plaintiff every possible opportunity to refresh the recollection of the witnesses, counsel persisted over and over in the presence of the jury in stating that he was being hampered or foreclosed in the presentation of his case because (1) his witnesses were hostile or (2) he had been unable to obtain record information from defendants. Both charges were entirely improper, contrary to the facts and most prejudicial to the defendant. We mention a few of the numerous other factors in the trial which moves us without reservation to determine that the interests of justice require a new trial, such as continuous arguing with the Court on rulings which had been made and disposed of (NT 158, 160-162) and continuous attempts to deliberately create error. Practically the first 171 pages of testimony are replete with this type of trial practice. Further examples of arguing with the Court and witnesses may be found from pp. 794 to 810 of the notes of testimony. It would serve no useful purpose to further elaborate on this feature of the case. The record clearly reveals that in retrospect we should have withdrawn a juror on the second day; that the jury could not give the case the attention which it deserved due to the above and other facts revealed in the record.

Finally, in the opinion of the Court, the verdict of the jury was contrary to the weight of the evidence and had they not been confused or affected by the manner in which the case was tried, their verdict, we believe, would have been in favor of the defendant.

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